In an unpublished opinion, the United States District Court for the District of New Jersey held that the Government was not liable under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) or Resource Conservation and Recovery Act (“RCRA”) for remediation costs incurred at a former defense site. PPG Indus., Inc. v. United States, No. 12-3526, 2018 WL 6168623 (D.N.J. Nov. 26, 2018). Last year we reported on TDY Holdings v. United States, in which the Ninth Circuit rejected a zero percent liability allocation to the government for remediation costs incurred at a former aeronautical manufacturing plant. In PPG Industries, the District of New Jersey found that the Government’s general wartime control over a New Jersey chromite facility was insufficient by itself to impose liability absent a direct connection between the Government and waste disposal activities. The District Court’s decision highlights a hurdle for private parties hoping to hold the government responsible for cleanup costs incurred at former defense sites. Read More »

Last week, the United States Court of Appeals for the Third Circuit resurrected two separate lawsuits filed by residents living near the Willow Grove Naval Air Reserve Station in Horsham Township, Pennsylvania and the Naval Air Development Center in Warminster Township, Pennsylvania, which both seek to have the Navy fund medical monitoring programs for exposure to drinking water impacted by two emerging contaminants – perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”) – attributable to operations at the two Naval facilities. In two parallel cases that were joined for appeal – Giovanni et al. v. U.S. Dep’t of the Navy and Palmer et al. v. U.S. Dep’t of the Navy, 2018 WL 4702222 (3d Cir. Oct. 2, 2018) – the Third Circuit held that the residents’ claims for medical monitoring under the Pennsylvania Hazardous Sites Cleanup Act (“HSCA”) were not barred by the Navy’s ongoing investigation and remediation at the sites under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), because a request for medical monitoring “does not interfere with or alter the ongoing cleanup efforts.” In contrast, the Third Circuit affirmed the dismissal of the residents’ separate claim that sought to have the Navy perform a government-led health assessment or health effects study, which was barred as a challenge to the Navy’s ongoing response actions at the sites. Read More »

Last week, a federal district court in Alabama rejected motions to dismiss a RCRA declaratory judgment and injunctive relief action filed by an environmental interest group against a group of defendants including an Alabama manufacturer that formerly used and disposed of materials containing perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonate (“PFOS”). Tennessee Riverkeeper, Inc. v. 3M Co. et al., No. 16-1029-AKK (Feb. 10, 2017 N.D. Ala.). This decision follows a chain of increasing regulatory and private scrutiny of PFOA and PFOS. In May 2016, EPA released more stringent drinking water standards for PFOA and PFOS, and firms that use, used, or disposed of one or both of the chemicals are frequently becoming the targets of regulatory and private enforcement efforts like this one. Read More »

A U.S. District Court recently considered two questions in response to a citizen suit under the Resource Conservation and Recovery Act (“RCRA”) requesting injunctive relief while an ongoing state-court proceeding over the remediation was already ongoing: (1) whether the Court could enter injunctive relief even though the state-proceeding was ongoing; and (2) whether the Court should enter injunctive relief in light of the state-proceeding. In the case, LAJIM, LLC, et al. v. General Electric Co., No. 13 CV 50348 (N.D. Ill. October 4, 2016), the U.S. District Court for the Northern District of Illinois first held that RCRA “plainly authorizes” injunctive relief in citizen suits, even when a state proceeding is ongoing. But the Court found that it needed additional facts to determine whether the injunctive relief was appropriate in the case before it, and established an action plan to make such a finding. Read More »

Several years ago we reported onCommunity Action & Environmental Justice v. Union Pacific Corporation, in which a California District Court held the dispersion into the air of particulate matter that reaches the ground or water did not constitute a “disposal” subject to RCRA but, instead, was subject to regulation under the Clean Air Act. That District Court opinion was affirmed in 2014, in Community Action & Environmental Justice v. Union Pacific Corporation, 764 F.3d 1019 (9th Cir. 2014). Yesterday, in the case of Pakootas v. Teck Cominco Metals, No. 15-35228 (9th Cir. July 27, 2016), the Ninth Circuit expanded this analysis of the relative roles of our environmental laws by holding that a party who disperses air pollutants that eventually settle into the ground or water are not arrangers liable under CERCLA as they have not “disposed of” hazardous substances under the Act. Read More »

As footnoted in yesterday’s post, the decision in Trinity Industries, Inc. v. Chicago Bridge & Iron Co., No. 12-2059 (3rd Cir. Aug. 20, 2013), was a twofer. Yesterday, we wrote about that part of the decision which held that a party who has resolved its liability under state statutes may seek contribution under Section 113(f) of CERCLA. Today, we look at the second part of the decision, which concerns the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §6901, et seq.Read More »

As most of our readers know, the Resource Conservation and Recovery Act (RCRA)gives the EPA control over the generation, transportation, treatment, storage, and disposal of hazardous waste, often described as “cradle-to-grave” coverage of hazardous wastes. One of its provisions, 42 U.S.C. § 6972(a)(1)(B), allows any person to bring suit against another “who has contributed . . . to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.” Read More »

Back in October, we reported on a Complaint filed in California, in the case of Center for Community Action & Environmental Justice v. Union Pacific Corporation, No. CV11-8609 (C.D. Cal.) that contended that particulate matter in diesel fuel combustion exhaust is a hazardous waste which is “disposed of” when emitted and therefore is subject to the requirements of Resource Conservation and Recovery Act (RCRA). Creative as it might have been, on a Motion to Dismiss, the Honorable S. James Otero threw out the case without leave to amend. Read More »

We don’t just write, we speak too! I’m going to be leading a breakfast roundtable discussion on March 6 as part of ICSC’s University of Shopping Centers. More details are here and please stop by! Read More »

On October 18, the Natural Resources Defense Council filed a lawsuit in California contending that particulate matter in diesel fuel combustion exhaust is a hazardous waste and therefore subject to the requirements of Resource Conservation and Recovery Act (RCRA). If the Court agrees, then the world of environmental law and regulation is likely to be turned upside down. Read More »